September 30, 2011

Prosecutors Back Off Request For Defense Notes in Clemens Case

Federal prosecutors today abandoned their legal challenge to review the notes a defense investigator for Roger Clemens took with jurors after a mistrial in the obstruction case.

The investigator for Clemens' defense team spoke with jurors after the prosecution of of the former baseball pitcher collapsed over prosecutorial missteps in Washington federal district court.

On the second day of trial in July, U.S. District Judge Reggie Walton declared a mistrial. The government’s lawyers played for jurors a video that contained evidence the judge had earlier said could not be presented.

Prosecutors recently reached out to Walton seeking permission to speak with the jurors as the government prepares to retry Clemens on charges he lied to Congress when he denied ever using performance enhancing drugs.

Court rules, Walton said, require a judge to permit the parties involved in a case to speak with jurors after they are discharged. Walton said the defense investigator violated those rules. The judge, however, did not issue sanctions. Walton sent a letter to the former jurors asking whether any one had a desire to discuss the case with the lawyers.

Prosecutors also asked Walton earlier this month to require Clemens’ attorneys, led by Russell Hardin Jr., to provide to the government the defense investigator’s notes with jurors. Clemens’ defense attorneys opposed the request.

Walton told prosecutors that they can file a motion to compel the defense to turn over the notes. The deadline to file any such request was today.

In a one-paragraph filing this morning, prosecutors said they will not file a motion to compel Clemens’ attorneys to turn over the notes. An assistant U.S. attorney, Daniel Butler, did not provide an explanation of why the government would no longer seek the information.

Two white-collar defense lawyers in Washington said the government would likely have faced a high hurdle to review the Clemens documents. Clemens’ defense could have argued the papers are confidential through the attorney work-product privilege. Walton has set the Clemens retrial for April.